[Cite as State v. Franklin,

.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. CT2019-0042 SEAN A. FRANKLIN

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. CR2018-0670

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 30, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

D. MICHAEL HADDOX AARON JONES PROSECUTING ATTORNEY 503 South Front Street TAYLOR P. BENNINGTON Suite 205 ASSISTANT PROSECUTOR Columbus, Ohio 43215 27 North Fifth Street, P. O. Box 189 Zanesville, Ohio 43701 Muskingum County, Case No. CT2019-0042 2

Wise, John, P. J.

{¶1} Defendant-Appellant Sean A. Franklin appeals his conviction and sentence

entered by the Muskingum County Court of Common Pleas on two counts of possession

of drugs, two counts of trafficking in drugs, and one count of possession of drug

paraphernalia following a jury trial.

{¶2} Plaintiff-Appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶3} The relevant facts and procedural history are as follows:

{¶4} On March 13, 2017, detectives with the Muskingum County Sheriff’s Office

were notified by a confidential source that Appellant Sean Franklin was selling cocaine,

methamphetamine and marijuana from his residence. The source then provided a

description of the residence, identifying it as being on Dryden Road, between Luck

Avenue and Brighton Boulevard, in Zanesville, Ohio.

{¶5} Detectives located the residence and conducted trash pulls on April 12,

2017, and April 19, 2017. During the trash pulls, the officers found green vegetation which

appeared to be marijuana, several plastic sandwich bags with the corners ripped out, an

empty package of CBD highly concentrated edibles. The field tests performed on the

baggies were positive for cocaine residue.

{¶6} Officers then submitted an affidavit and obtained a search warrant for the

house. During the search, officers located 28.54g of cocaine and money in Appellant's

dresser. Marijuana, digital scales, and plastic baggies were also found during the search.

{¶7} On October 24, 2018, Appellant was indicted on one count of Possession

of Drugs (Cocaine), with a forfeiture specification, in violation of R.C. §2925.11(A) and Muskingum County, Case No. CT2019-0042 3

R.C. §2941.1417 [F-1], one count of Trafficking in Drugs (Cocaine), with a forfeiture

specification, in violation of R.C. §2925.03(A)(2) and R.C. §2941.1417 [F-1], one count of

Trafficking in Drugs (Marijuana), with a forfeiture specification, in violation of R.C.

§2925.03(A)(2) and R.C. §2941.1417 [F-5], one count Possession of Drugs (Marijuana),

in violation of R.C. §2925.11(A) [M-4], and one count Possession of Drug Paraphernalia,

in violation of R.C. §2925.14(C)(1) [M-4].

{¶8} On January 2, 2019, Appellant filed a plea of not guilty.

{¶9} On March 4, 2019, Appellant filed a Motion to Suppress.

{¶10} On March 5, 2019, Appellant filed a Motion to Compel the State to Reveal

the Confidential Informant.

{¶11} On March 7, 2019, a hearing was held on Appellant’s Motion to Suppress.

{¶12} On March 11, 2019, the trial court denied the Motion to Suppress.

{¶13} On March 13, 2019, the trial court denied the Motion to Compel.

{¶14} On March 15, 2019, Appellant filed a Motion in Limine requesting that any

testimony regarding the confidential source be excluded.

{¶15} On March 18, 2019, Appellant filed a Motion to Compel a Bill of Particulars.

{¶16} On March 19, 2019, a jury trial began. Prior to the commencement of the

trial, the trial court granted Appellant’s Motion in Limine, holding that information regarding

the confidential source could not be presented. The trial court denied the Motion to

Compel, finding that a Bill of Particulars was not required.

{¶17} During the trial, the court allowed the State to question Detective Wilhite

about the confidential source, finding that counsel or Appellant had opened the door on

cross-examination. Muskingum County, Case No. CT2019-0042 4

{¶18} On March 20, 2019, the jury found Appellant guilty of all charges as

contained in the indictment.

{¶19} On April 24, 2019, Appellant was sentenced to an aggregate sentence of

ten (10) years in prison.

{¶20} Appellant now appeals, raising the following assignments of error for review:

ASSIGNMENTS OF ERROR

{¶21} “I. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S

MOTION TO SUPPRESS WHEN THE COURT IMPROPERLY CONSIDERED

TESTIMONY THAT WAS NOT OFFERED TO THE ISSUING MAGISTRATE OR

INCLUDED IN THE AFFIDAVIT IN SUPPORT OF THE SEARCH WARRANT.

{¶22} “II. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S

MOTION TO SUPPRESS WHEN THE AFFIDAVIT IN SUPPORT OF THE SEARCH

WARRANT WAS FACIALLY DEFICIENT, OVERBROAD, LACKED PROBABLE CAUSE,

WAS BASED ON UNDISCLOSED INFERENCES OF THE AFFIANT, FAILED TO AVER

TO THE RELIABILITY OR BASIS OF KNOWLEDGE OF A CONFIDENTIAL SOURCE

AND WAS INSUFFICIENTLY PARTICULAR IN VIOLATION OF THE FOURTH

AMENDMENT.

{¶23} “III. THE TRIAL COURT ERRED WHEN IT PERMITTED HEARSAY

TESTIMONY REGARDING A CONFIDENTIAL SOURCE WHO DID NOT TESTIFY AND

WAS NOT REVEALED PRIOR TO TRIAL IN VIOLATION OF APPELLANT'S RIGHT TO

CONFRONT HIS ACCUSERS UNDER THE SIXTH AND FOURTEENTH

AMENDMENTS. Muskingum County, Case No. CT2019-0042 5

{¶24} “IV. THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S

REQUEST FOR A BILL OF PARTICULARS.”

I., II.

{¶25} In his first and second assignments of error, Appellant argues that the trial

court erred in denying his motion to suppress.

{¶26} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's finding of fact.

Second, an appellant may argue the trial court failed to apply the appropriate test or

correct law to the findings of fact. Finally, an appellant may argue the trial court has

incorrectly decided the ultimate or final issue raised in the motion to suppress. When

reviewing this third type of claim, an appellate court must independently determine,

without deference to the trial court's conclusion, whether the facts meet the appropriate

legal standard in the given case. See State v. Fanning (1982),

,

; State v. Williams (1993),

,

; State v. Curry

(1994),

,

; State v. Claytor (1993),

,

; State v. Guysinger (1993),

,

. The United States Supreme Court has held that as a general matter determinations

of reasonable suspicion and probable cause should be reviewed de novo on appeal. See

Ornelas v. United States (1996),

,

,

.

{¶27} Here, Appellant claims the trial court erred in finding the affidavit in support

of the search warrant contained sufficient probable cause and further improperly

considered testimony of witnesses during the suppression hearing. Muskingum County, Case No. CT2019-0042 6

{¶28} The Fourth Amendment to the United States Constitution and Article I,

Section 14 of the Ohio Constitution provide that search warrants may only be issued upon

probable cause, supported by oath or affirmation, particularly describing the place to be

searched, and the person and/or things to be seized. See also State v. Jones,

,

,

.

{¶29} Appellant herein claims that the search warrant affidavit did not provide

sufficient probable cause that contraband would be found at Appellant’s home. Appellant

argues that the search warrant was based on an undisclosed affidavit, failed to show the

reliability of the confidential source and was not sufficiently particular as to the items to

be seized.

Probable Cause

{¶30} In authorizing a search warrant, the issuing magistrate’s duty is to determine

whether “there is a fair probability that contraband or evidence of a crime will be found in

a particular place * * *.” Illinois v. Gates,

,

,

(1983); Jones at ¶ 13. “[T]he duty of a reviewing court is simply to ensure that the

magistrate had a ‘substantial basis for * * * conclud[ing]’ that probable cause existed.”

, quoting Jones v. United States,

,

,

(1960); State v. Castagnola,

,

,

. Ordinarily, “a probable cause inquiry must be confined to the four corners of

the affidavit.” State v. Klosterman,

,

(2d

Dist. 1996). In reviewing whether a search warrant has been issued upon probable cause,

courts must examine the totality of the circumstances. Jones,

, 2015-

Ohio-483,

. Muskingum County, Case No. CT2019-0042 7

{¶31} Trial courts and appellate courts “should accord great deference to the

magistrate’s determination of probable cause, and doubtful or marginal cases in this area

should be resolved in favor of upholding the warrant.” State v. George,

,

(1989), paragraph two of the syllabus; Jones,

, 2015-

Ohio-483,

.

{¶32} Initially, Appellant argues that the affidavit was improperly based on an

undisclosed inference of the affiant. More specifically, Appellant claims that Detective

Wilhite presented his own inference that 440 Dryden Road was Appellant’s address.

{¶33} Upon review, we find said argument to be not well-taken. The confidential

source in this case told the detectives where Appellant lived and further provided great

detail.

{¶34} Paragraph 2 of the Affidavit states:

On March 13, 2017, Det. Matt Wilhite spoke with a confidential

source in reference to Sean Anthony Franklin. The source advised that

Franklin sells ounce quantities of cocaine and methamphetamine as well as

marijuana. The source advised that Franklin is supplied by a large scale

trafficker that receives ½ kilo quantities of cocaine and methamphetamine.

The source advised that Franklin lives on Dryden Road between Luck

Avenue and Brighton Boulevard. The source described the residence as

being tan in color and having several surveillance cameras on the front of

the residence.

{¶35} With regard to the detective’s confidence in and reliability of the confidential

source, the affidavit at page 3 stated: Muskingum County, Case No. CT2019-0042 8

And the affiant has reasonable cause to believe that the source of

the information is credible and reliable in that: Information obtained from a

confidential source, information obtained by law enforcement through

independent investigation, and information passed from one law

enforcement officer to another corroborate one another.

{¶36} Testimony was also provided by the Detective that he ran Appellant’s Ohio

Driver’s License and it came back with 440 Dryden Road as Appellant’s address. (T. at

34).

{¶37} Further, paragraph 5 of the Probable Cause Affidavit states:

Sean Anthony Franklin’s Ohio Driver’s License was checked in the

Ohio Law Enforcement Gateway and found that Franklin has listed the

address of 440 Dryden Road, Zanesville, Ohio as his address.

{¶38} However, Appellant, in his Reply Brief, raised for the first time the issue that

the copy of the Probable Cause Affidavit provided to Appellant by fax by the State of Ohio

omitted the second page which contained paragraphs 4 and 5. Appellant argues that

because the trial court did not have this page before it when considering the Affidavit, the

Court should likewise not consider the information contained in those two paragraphs,

namely the second trash pull and the fact that Appellant’s driver’s license listed 440

Dryden as his address.

{¶39} Under App.R. 16(C), an appellant may file a brief “in reply to the brief of the

appellee.” “A reply brief affords an appellant an opportunity to respond to an appellee's

brief, * * * and it is improper to use it to raise a new issue.” State v. Mitchell, 10th Dist. No.

10AP–756, 2011–Ohio–3818, ¶ 47. See also State ex. rel. Bryant v. Indus. Comm., 10th Muskingum County, Case No. CT2019-0042 9

Dist. No. 07AP–731, 2008–Ohio–3292, ¶ 5 (“The purpose of a reply brief is to afford the

appellant, or in this case, relator, with an opportunity to ‘reply’ to the arguments in

appellee's/respondent's brief, not to raise a new argument for the first time.”). For this

reason, generally, we will not address an argument raised for the first time in a reply brief.

State v. Townsend, 10th Dist. No. 10AP–983, 2011–Ohio–5056, ¶ 15.

{¶40} However, because ordinarily, “a probable cause inquiry must be confined

to the four corners of the affidavit” we will consider the trial court’s probable cause

determination without consideration of the missing page. State v. Klosterman,

,

(2d Dist. 1996).

{¶41} In reviewing whether a search warrant has been issued upon probable

cause, courts must examine the totality of the circumstances. Jones,

,

,

.

{¶42} Trial courts and appellate courts “should accord great deference to the

magistrate’s determination of probable cause, and doubtful or marginal cases in this area

should be resolved in favor of upholding the warrant.” State v. George,

,

(1989), paragraph two of the syllabus; Jones,

, 2015-

Ohio-483,

.

{¶43} Upon review, as stated above, probable cause for the search warrant was

based on evidence of drug trafficking provided by a confidential source and found during

a trash pull. We find that this evidence alone, even without consideration of the second

trash pull or evidence that Appellant’s driver’s license listed 440 Dryden as his address,

was sufficient to support a finding of probable cause. Muskingum County, Case No. CT2019-0042 10

Overbreadth

{¶44} Appellant further claims that the search warrant was overbroad and lacking

in particularity.

{¶45} “Courts addressing the particularity requirement of the Fourth Amendment

are concerned with two issues. The first issue is whether the warrant provides sufficient

information to ‘guide and control’ the judgment of the executing officers in what to seize.

The second issue is whether the category as specified is too broad in that it includes items

that should not be seized.” (Citations omitted.) Castagnola,

, 2015-Ohio-

1565,

; see also State v. Terrell,

,

(2d Dist.).

{¶46} Here, the warrant authorized a search for the following items:

cocaine, marijuana, and any other illegal/illicit narcotics, drug scales,

drug paraphernalia, drug abuse instruments, firearms, U.S. currency,

computers, computer discs/programs, cell phones, any/all documents

pertaining to trafficking in drugs, or the manufacture of drugs, telephone

records, tax records, bank account numbers, banking records, safety

deposit box keys, storage unit keys, safes or strong boxes, or any other

financial records, cameras or video equipment being used as security/

counter-surveillance.

{¶47} Criminal Rule 41(B) provides:

Property Which May Be Seized With a Search Warrant. A search

warrant may be issued under this rule to search for and seize any: (1)

evidence of the commission of a criminal offense; or (2) contraband, the Muskingum County, Case No. CT2019-0042 11

fruits of crime, or things otherwise criminally possessed; or (3) weapons or

other things by means of which a crime has been committed or reasonably

appears about to be committed.

{¶48} Upon review we find that the affidavit sets forth evidence of drug trafficking

which would support a warrant for the above listed items as items likely to be found in the

possession of someone possessing and/or trafficking in drugs. We therefore find said

Affidavit was not overbroad.

{¶49} Finally, Appellant argues that the trial court considered testimony from

Detective Wilhite at the suppression hearing which was not contained in the affidavit.

Appellant argues the affidavit only references one trash pull, but Det. Wilhite testified

regarding two separate trash pulls. Upon review, we find that the affidavit specifically sets

forth, in detail, that two separate trash pulls were conducted: one on April 12th and one

April 19th. (See Affidavit at paragraphs 3 and 4). However, if we disregard the second

trash pull based on the omission of the second page of the Affidavit, we find any error

with regard to such testimony to be harmless as evidence of the second trash pull was

still before the trial court with regard to a separate search warrant issued on April 25,

2017.

{¶50} Appellant further claims that it was error for Det. Wilhite to provide the trial

court with photographs of the items discovered during the trash pull because same were

not provided to the magistrate who issued the search warrant. Upon review, we find no

error as the items depicted in the photographs were described in detail in the affidavit.

{¶51} The admission or exclusion of relevant evidence rests in the sound

discretion of the trial court. State v. Sage,

,

(1987). Muskingum County, Case No. CT2019-0042 12

Generally, all relevant evidence is admissible. Evid.R. 402. Abuse of discretion means

more than an error of law or judgment. Rather, it implies that the court's attitude is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,

,

(1983). Absent an abuse of discretion resulting in material prejudice to

the defendant, a reviewing court should be reluctant to interfere with a trial court's decision

in this regard. Sage,

.

{¶52} Appellant also argues Det. Wilhite should not have been allowed to testify

as to why bank records, firearms, computers, and cell phones were included in the

affidavit because in said affidavit Det. Wilhite only stated “Your affiant has participated in

hundreds of investigations where cell phones, computers and various personal and

financial documents have been used as a means to facilitate a crime. (Affidavit at

paragraph 1).

{¶53} Det. Wilhite’s testimony was as follows:

Q: What about firearms, do individuals that are in trafficking with drugs

often have firearms?

A: Yes.

Q. U.S. currency?

A: Yes

Q: What about computers, cell phones, have you ever seen those

used for purposes of engaging in trafficking ill drugs?

A: Yes, on several occasions.

Q: What about bank records, why would you want bank records? Muskingum County, Case No. CT2019-0042 13

A: Bank records are used to prove or disprove employment, money,

monetary money coming in, and valid sources of income.

(Suppression hearing at 26-27).

{¶54} Upon review, we find that Det. Wilhite did not add any additional elaboration

to his statements as contained in his affidavit.

{¶55} As set forth above, we find no error in the trial court’s decision finding that

the affidavit in support of the search warrant contained sufficient probable cause for the

issuance of same.

{¶56} Appellant’s first and second assignments of error are overruled.

III.

{¶57} In his third assignment of error, Appellant argues the trial court erred in

allowing testimony regarding a confidential source who did not testify at trial. We disagree.

{¶58} Upon review, we find that no mention of the confidential source was made

during the direct testimony of Detective Wilhite. The first mention of the confidential

source came during cross-examination of Detective Wilhite by Appellant’s counsel. Said

exchange was as follows:

Q: … Why do you believe that that residence was Sean

Franklin’s [sic]?

A: Because he had items in the residence that were his, and he

was in the residence when the search warrant was conducted.

Q: Okay. But prior to that time did you have any reason to believe

Sean Franklin lived there?

A: Yes. Muskingum County, Case No. CT2019-0042 14

Q: Okay. How?

A: I received anonymous complaints

Counsel: Objection, Your Honor.

Court: You’re the one that asked the question.

A: I received anonymous complaints and information from

sources.

{¶59} (T. at 223-224).

{¶60} As set forth above, Appellant opened the door to introduction of the

testimony about the confidential source. A court will not find error “when the defense

opens the door to otherwise inadmissible evidence.” State v. Davis,

,

,

(8th Dist.). We find that Appellant did so here.

Once defense counsel questioned Det. Wilhite about how he learned that Appellant lived

at that address, this opened the door for the answer. It is well-settled that “[a] party will

not be permitted to take advantage of an error which he himself invited or induced. * * * ”

Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co.

,

,

paragraph 1 of the syllabus. We find that the trial court did not abuse its discretion in

admitting the testimony.

{¶61} Based on the foregoing analysis, we find that the trial court did not err when

it allowed the above testimony in response to defense counsel’s questions.

{¶62} Accordingly, Appellant's third assignment of error is overruled.

IV.

{¶63} In his fourth assignment of error, Appellant argues the trial court erred when

it denied his request for a bill of particulars. We disagree. Muskingum County, Case No. CT2019-0042 15

{¶64} Specifically, Appellant argues that indictment in this matter only contained

the names of the charged offenses and relevant code sections but failed to include dates

and times or the specific manner Appellant engaged in drug trafficking.

{¶65} The purpose of a bill of particulars is to inform an accused of the nature of

the offense and the conduct alleged to constitute the offense. Crim.R. 7(E). “A bill of

particulars has a limited purpose - to elucidate or particularize the conduct of the accused

alleged to constitute the charged offense.” State v. Sellards,

,

.

{¶66} Here, it is undisputed that Appellant was informed at the time of receipt of

discovery that the State does not provide Bills of Particulars in any criminal matter.

{¶67} At the beginning of the trial, the trial court addressed the issue as follows:

THE COURT: If he presents something that hasn't been provided in

discovery, you have a right to object to the rule at that point in time.

MR. BEDTELYON: Sure.

THE COURT: If it's not contained within the four corners of your discovery,

I won't allow it. So he's stuck to what you already have.

MR. BEDTELYON: I - I understand.

THE COURT: So there shouldn't be anything hidden. If there is, bring it

up.

{¶68} (T. at 17).

{¶69} Further, it is undisputed that the Muskingum County Prosecutor's Office

maintains “open-file discovery,” pursuant to which the state provides discovery by

allowing defense counsel to see all of its files regarding a case without requiring the Muskingum County, Case No. CT2019-0042 16

defense to make a written request for discovery. No bill of particulars is required when

the state allows open-file discovery. State v. Evans, 2d Dist. Montgomery No. 20794,

2006–Ohio–1425, ¶ 24, citing State v. Tebcherani, 9th Dist. Summit No. 19535,

(Nov. 22, 2000). State v. Coffey, 6th Dist. Lucas No. L-12-1047, 2013-Ohio-

3555, ¶ 35

{¶70} In this case, a bill of particulars would not have provided the defense with

any additional information. Appellant was informed of Appellee's open-discovery policy

and thus had access to items such as the police reports, medical reports, and witness

statements in the case. The record clearly establishes that the defendant had notice of

the nature of the pending charges. Therefore, the purpose of the bill of particulars was

fulfilled.

{¶71} Appellant’s fourth assignment of error is overruled.

{¶72} Accordingly, the judgment of the Court of Common Pleas, Muskingum

County, Ohio, is affirmed.

By: Wise, John, P. J.

Delaney, J., and

Wise, Earle, J., concur.

JWW/d 0220